—Ruti Teitel, 2012-13 Straus fellow at NYU School of Law, Ernst C. Stiefel Professor of Comparative Law at New York Law School, and author of Transitional Justice (OUP 2000) and Humanity’s Law (OUP 2012).

In the London newspaper the Daily Mail, Saif Gaddafi’s longtime girlfriend, Orly Weinerman, has asked that Saif be spared prosecution in Libya and sent instead to the International Criminal Court (ICC) in the Hague.

Does Saif deserve local justice in the western mountain town of Zintan, where he has been held by the militia that arrested him more than a year ago? The same question could be asked of former Gaddafi intelligence chief Abdullah al-Senussi, who was recently extradited to Libya. Yet Gaddafi’s spy chief is sought as well as by the ICC under a warrant in connection with the crackdown on popular protests during the revolution that toppled Gaddafi’s regime.

The United Nations has called on the Libyan government to fully cooperate with the ICC. But just what does this obligation mean?

Where to try Senussi and the current status of Saif raises anew the question of what rule of law principles guide the demand for transitional criminal justice today. The question engages important issues of principle concerning the purposes and operations of the ICC and its relation to domestic legal systems. The ICC’s Rome Statute operates along a principle known as complementarity, which is set out in the statute’s preamble and which allows for a challenge to ICC jurisdiction on the grounds that the state in question is “able” and “willing” to try the accused in its own courts.

The Rome Statute, in its preamble, emphasizes that “[t]he International Criminal Court established under this Statute shall be complementary to national criminal jurisdictions….” The statute adds in article 17 that “[t]he Court shall determine that a case is inadmissible where ‘[t]he case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable to genuinely to carry out the investigation or prosecution.’”

The ICC has expressed concern that Libya is not set up to give the younger Gaddafi a fair trial. This concern seems reasonable given the current state of (dis)order in the country, not unexpected given the kind of revolution that recently occurred.

But, astonishingly, the Prosecutor’s Office of the ICC has also suggested that the complementarity principle in the court’s statute does not require the guarantee of a fair trial in order to hand off the prosecution of an indicted war criminal to a national legal system. Before he stepped down, former ICC Chief Prosecutor Luis Moreno-Ocamp said that while he hopes Saif’s trial is fair, “we [the ICC] are not a system to monitor fair trials. We are a system to ensure no impunity.”

Of course, it cannot be gainsaid that the goal of making sure that the perpetrators of these crimes avoid impunity is a major goal of international criminal justice. But in the transitional context which characterizes the ICC, avoiding impunity can hardly be the only value involved in complementarity. An equal or more compelling goal is to prevent post-conflict free fall into vengeance, vendetta, or victor’s justice.

If this were not true, then the ICC would be used as a stimulus to show trials. Indeed one might hearken back to the post-World War II moment and Winston Churchill’s argument against international trials and for extrajudicial executions.

International criminal justice has to mean something else.

Consider that the ICC’s Rome Statute is a treaty, and standard rules about interpretation of treaties in international law require that its complementarity principle be read along with other international obligations. So, when the statute refers to whether a state is “able” or “willing” to prosecute, that should include all that holding trials imply, that is, an ability and willingness to respect the human rights of the criminal defendant. Even those charged with grave offenses enjoy due process rights under long established international law. This would seem to be particularly true where the death penalty is in play—something that is not an option under the ICC’s own statute. How does an unfair trial with the possibility of the death penalty differ from extra-judicial executions, recognized human rights violations which would themselves violate the ICC statute’s own norms?

Indeed, this is not speculative. There are recent cautionary tales. The recent in absentia trials of its former vice president convened in Iraq, as well as that of Ben Ali in Tunisia, the truncated trial of Mubarak, and his cohorts in Egypt—all in transitional contexts. In these cases, expedited trials lacked full guarantees of due process, and therefore failed to tell the full story of these repressive regimes in a credible way.

The concern would seem to be all the more true in light of the alleged offenses at issue for Saif and Senussi.

Saif’s warrant includes “crimes against humanity” for his alleged involvement in “conceiving and orchestrating” a planned policy of systematic attacks on unarmed civilians who opposed the regime, the abuses that motivated Security Council action and international intervention in Libya in the first place.

In these sorts of cases, there are special interests in international trials because, from the very start of the Security Council referral of the situation, the concern was “crimes against humanity” and not just those of the Libyan people.

What is the point of convening these trials in the Hague if the international community fails to send a strong message against crimes against humanity, including against torture and other humiliating and degrading treatment? What is the point of the international referral if the necessary message is not able to deter similar such exercise of power by other political leaders or those in similar positions of control? It is a difficult message to send if this becomes a matter of local justice under ordinary criminal law, as Libya is trying to mete out by bringing the cases against Saif and Senussi, and especially so where there are irregularities in the relevant process.

What then of the message if such violations are committed in the context of the trial? This is a major problem. Post-Gaddafi, Libya today is wracked by rampant militia groups operating above the law. As Amnesty International has published in numerous reports for the past year, Libya’s militias have been committing acts of torture and murder against those deemed former Gaddafi supporters, driving entire populations of towns out of their homes, and operating unofficial jails. In some cases militia members have stormed into courtrooms and even threatened prosecutors and lawyers. Case in point: this last summer the local militia holding Saif had the audacity to detain an ICC lawyer who was part of the Saif defense team for three weeks on spying allegations.

Given these abuses, what message would it send if in the supposed name of justice Saif is tortured in captivity to confess or otherwise abused?

According to Mohammed al-Alagy, a former interim justice minister who now heads Libya’s human rights council, “we are now facing an exceptional justice system which lacks the basis of a fair trial.” Trials are being ordered, he said, while bypassing necessary legal steps to ensure suspects are treated fairly.

Human rights advocates in Libya and abroad worry that the combination of a lack of prior legal institutions, weak central government and a relative lack of rule of law mean legal proceedings—both for Saif and for Senussi—can hardly meet international standards.

This is why a week or so ago, human rights groups called on Libya’s government to hand over Senussi to the ICC where an arrest warrant for him remains in force.

The guarantees of justice need to be interpreted in every generation within the relevant context, history and other relevant rule of law and human rights protections. The very standing and legitimacy of the ICC and of international justice more broadly hangs in the balance.

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